Why we shouldn't judge juries

Criticism of a jury in the UK for acquitting four individuals who toppled a slave trader's statue is just wrong

In this courtroom sketch, Judge Alison Nathan, far left, speaks to the jury, right, during the Ghislaine Maxwell trial in December in New York. AP Photo

Trial by jury is an act of faith. Will jurors – a group of ordinary citizens – be reasonable? Sensible? Fair? For centuries, the answer to these questions has usually been “yes". But two cases that concluded this month have led to some having doubts.

The principle is simple. In countries with roots in English common law, the justice system pulls together diverse adults who may have nothing much in common. They listen to a legal case. Then they are expected to agree about whether a defendant is guilty or innocent. Where capital punishment is allowed, a jury’s decision is literally a matter of life or death.

In two highly publicised cases, however, the jury system has come under unusual scrutiny.

In the US, two jurors in the Ghislaine Maxwell paedophilia trial were revealed to have a history of being sexually abused. There are now rumblings that a mistrial may be declared. Meanwhile in the UK, four people who took part in a Black Lives Matter protest have been acquitted by a jury of a relatively minor charge of criminal damage after throwing a statue of Edward Colston into docks in the city of Bristol.

Like most people in Britain, I had no idea who Colston was until the protest. He is described as a “philanthropist” who gave money to charitable causes, but the protests revealed his “benevolence" came from the fortune he made as a slave trader and deputy governor of the Royal African Company, the biggest British player in the slave trade. The historian David Olusoga, who appeared in court as a defence witness, noted Colston was involved in the enslavement of 84,000 men, women and children and “complicit in the deaths of 19,000 of them, who died squirming in agony, chained to the decks of the Royal African Company’s slave ships".

No one disputes the four accused damaged the Colston statue. But the jury did what juries are supposed to do. They used common sense. They decided that a political protest to remove a monument to someone complicit in mass murder did not merit a guilty verdict. The “Colston Four” were acquitted, but the jury’s refusal to convict outraged some British Conservative politicians.

The former cabinet minister Robert Jenrick said the “rule of law” was undermined “if we accept vandalism and criminal damage are acceptable forms of political protest". The Conservative MP Tom Hunt said he was “deeply concerned by the precedent set here". And the Attorney General Suella Braverman tweeted: “Trial by jury is an important guardian of liberty and must not be undermined. However, the decision in the Colston statue case is causing confusion. Without affecting the result of this case, as attorney general, I am able to refer matters to the court of appeal so that senior judges have the opportunity to clarify the law for future cases. I am carefully considering whether to do so.”

Protesters throw statue of Edward Colston into Bristol harbour during a Black Lives Matter protest rally in the summer of 2020. PA Images
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Some politicians are wedded to the idea that old statues must be preserved, yet undermine the history of jury trials

Politicians are entitled to their views but these three come from a party where Black Lives Matter is considered part of Britain’s “culture wars” and their arguments against the jury’s verdict are quite odd. Mr Hunt presumably does not know that in English law, no legal precedent is set by the decision of a jury. Ms Braverman states that trial by jury “must not be undermined", and then undermines it by saying that a verdict of not guilty “is causing confusion” and she is considering what to do about it. Why is she confused? The verdict was clear: "not guilty". And Mr Jenrick is concerned about the “rule of law”, yet when he himself was the British government’s housing minister, he was forced to accept that he acted unlawfully. He gave approval to a multi-million-pound housing scheme against the advice of his own planning inspector. The scheme was financed by a billionaire donor to the Conservatives.

Paradoxically these politicians are wedded to the idea that old statues of often obscure historical figures must be preserved, yet simultaneously they undermine the much more important history of jury trials. For centuries, the jury system has been cherished as a pillar of English justice.

Now independent legal figures have pushed back against this crass political interference. Ken Macdonald, formerly England’s director of public prosecutions, said: “It is difficult to think of a case more appropriate to be decided by a randomly selected panel of local people. Juries have always been given the space to do what they think is right, sometimes by using their verdicts to assert changing values or to push back against abuses of power. This dispensation has served our country very well over the centuries, and ministers would be very foolish to try to challenge it – particularly for what appear to be political motives pushed by backbench Conservative MPs.”

I don’t endorse vandalism, but if a jury finds removing a statue of a slave trader – or for that matter, a statue of Saddam Hussein, Adolf Hitler or Joseph Stalin – to be lawful, I trust the judgement of my fellow citizens more than the posturing of a few politicians. Justice has been done.

Published: January 10th 2022, 2:00 PM
Gavin Esler

Gavin Esler

Gavin Esler is a broadcaster and UK columnist for The National